R v MacDonald[2015] QCA 253

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Morrison JA’s reasons for joining in the orders of this Court on 26 June 2015 as varied on 30 June 2015 granting the application for leave to appeal against sentence, allowing the appeal and varying the sentences imposed at first instance by suspending them forthwith.
2. The applicant was a mature man who profited from a single course of dishonesty which extended over about two months and involved property worth almost $11,000.  As the sentencing judge recognised, deterrence was an important consideration in determining the penalty.  But the applicant had no relevant prior convictions; he co-operated with the authorities; he pleaded guilty at an early stage; and he was remorseful.  He was the carer for his disabled partner and had prospects of employment which would assist him to pay compensation to the complainant.  In those circumstances, the effective sentence of fifteen months imprisonment suspended after three months was, in my view, manifestly excessive.  The conduct was deserving of the recording of a conviction and a fully suspended sentence of 15 months was within range.
3. As Morrison JA explains, the sentencing judge erred in his apprehension of the effect of the repeal of the requirement under s 9 Penalties and Sentences Act 1992 (Qld) that a period of imprisonment should be imposed only as a last resort^[1] and in his construction of the phrase “sentence of imprisonment”.  That phrase in s 9(12) includes a sentence of imprisonment which is fully suspended under s 144 Penalties and Sentences Act.  It is highly significant that s 9(12) does not use the phrase “actual term of imprisonment”, a phrase defined in s 9(13) as “a term of imprisonment served wholly or partly in a corrective services facility”.  Since the enactment of s 9(12), sentencing courts may be more readily persuaded that a term of imprisonment, whether fully suspended or involving actual custody, is the appropriate sentence.  But whether a judicial officer in undertaking the difficult task of sentencing imposes a term of imprisonment, actual or fully suspended, must always turn on the aggravating and mitigating features of the case.
4. MORRISON JA:  On 30 March 2015 Mr MacDonald was convicted, on his plea of guilty, to two charges: 1. stealing property of a value exceeding $5,000; and 2. fraud, by the dishonest application of the property of another.
5. He was sentenced to:

1. 15 months imprisonment on the stealing charge, suspended after three months;
2. concurrently, nine months imprisonment on the fraud charge, suspended after three months; and
3. a restitution order, requiring the repayment of $10,742.88 in 18 months.

6. Mr MacDonald sought to challenge the sentence, but only in respect of the imposition of a period of actual custody.  To that end he filed an application for leave to appeal against the sentence, and, on 9 April 2015, he was granted bail pending determination of his application.
7. At issue on the application was whether the sentence was manifestly excessive because of the imposition of any period of actual custody, with specific grounds being that a period of custody:

• would have a negative effect on the ability to meet the restitution order;
• is not consistent with the findings as to remorse, the motivation for stealing and the low likelihood of re-offending; and
• was the product of the learned sentencing judge giving too much emphasis to the fact that the comparable cases were decided before s 9(2) of the Penalties and Sentences Act 1992 (Qld) was repealed.

8. At the hearing of the application on 26 June 2015, this Court made the following orders:
   1. The application for leave to appeal against sentence is granted.
   2. The appeal is allowed.
   3. The sentence imposed on count 1 and count 2 is varied by suspending it forthwith.
   4. The sentences imposed at first instance are otherwise confirmed.
   5. The Court will deliver its reasons later.
9. What follows are my reasons for joining in the orders made on 26 June 2015.

Nature of the offending

10. At McEwens Beach there was a property on which was a prawn farm which had ceased operation in about 1999 or 2000.  The farm had four ponds with power to run equipment.  Three copper cables, joined to fuse boxes, ran through a copper conduit between the ponds.  There was a smaller copper cable which ran beneath that.
11. On 16 January 2013 the property owner found that the copper cable had been removed from around the ponds, and various fuse boxes had been smashed and the copper in them removed.  He made a complaint to police.
12. The owner later went to a scrap metal merchant who told him that Mr MacDonald had been to his business just before Christmas in 2012, speaking of having a large quantity of scrap metal including copper, machinery and old cars.  Mr MacDonald told the scrap metal merchant that he had purchased it from a farmer near Sarina, and that he had paid either $5,000 or $10,000 to the farmer.
13. Mr MacDonald returned to the scrap metal business on three occasions, selling copper wire for the following amounts: 27 December 2012, $3,977.60; 31 December 2012, $5,516.28; and 4 January 2013, $1,249.00.  The total amount received by Mr MacDonald was $10,742.88.  The scrap metal merchant subsequently sold the copper wire to another party.
14. Mr MacDonald participated in a recorded interview on 3 March 2013.  He told police:

1. he had been picking mangoes with his partner when they saw a ute coming out of the prawn farm; two men emerged from the ute and unloaded the contents of the ute, mostly copper wire, and hid it behind a “heap of lantana” and then left the property;
2. he and his partner then went and looked at what had been unloaded then retrieved his ute and loaded the copper wire into it;
3. he took the copper wire home, stripped it, and took it into the scrap metal merchant on one occasion;
4. he had taken the copper wire from where it was hidden “because of prior events that these two gentlemen had done to my family”;
5. he was aware that the two men would have taken the copper from the prawn farm;
6. he had only sold this copper wire to the scrap metal merchant on the first occasion (27 December 2012) and on the remaining two occasions the copper had come from his work at Moranbah North.

15. It was accepted by the Crown that Mr MacDonald removed the copper wire from behind the lantana, and that all three sales of copper wire related to the wire taken from the prawn farm.
16. The learned sentencing judge was told something more as to the circumstances, without objection.^[2]  The stealing was purely opportunistic.  The two men who were seen putting the copper wire behind the lantana had caused some sort of harm to the daughter of Mr MacDonald’s partner.  Mr MacDonald and the partner recognised them and thought that taking the wire would upset and hurt them.  That was the motivation for the stealing but, as was accepted at the sentence hearing,^[3] that motivation did not extend to the sale of the wire, which occurred at a time when Mr MacDonald’s financial position had turned down.

Antecedents of Mr MacDonald

17. Mr MacDonald was aged about 41 at the time of the offences and about 43 and a half at the time of sentencing.  He had a good work history, including eight years as a labourer and 18 years as an underground miner.  After ceasing as an underground miner he worked at an engineering shop.
18. Work references were tendered, speaking to his good work record, loyalty and reliability.^[4]  A letter was tendered from Mr MacDonald’s partner of 20 years, saying that she had fibromyalgia and he was now her carer because her condition meant “it is almost impossible to do the most everyday tasks”.^[5]  At the time of sentencing Mr MacDonald was on a Centrelink carer’s allowance.^[6]
19. Mr MacDonald tendered his own letter of apology to the farm owner.^[7]
20. At the sentence hearing on 30 March 2015, Mr MacDonald accepted that a restitution order would be made.  The learned sentencing judge was told that “he now has employment lined up to start on the 10^th of April” which would give him the chance to start restitution.  Further, that he could pay the restitution within, say, 18 months.^[8]
21. His prior criminal history was minor, consisting of an assault on a police officer (7 December 2013), and a failure to appear on a bail undertaking (21 March 2014).^[9]  No conviction was recorded in either case.

The competing positions on sentence

22. Counsel for Mr MacDonald urged, by reference to comparable cases,^[10] that a wholly suspended sentence of between nine and 18 months was appropriate.^[11]  The Crown submitted that the two most useful comparable cases were a single judge decision in R v Gabesh^[12] where two and a half years with parole release after 10 months was imposed, and R v Bingham^[13] where 18 months suspended after six months was imposed.

The learned sentencing judge’s approach

23. The factors referred to by the learned sentencing judge were:

1. the maximum penalty for the stealing charge was 10 years;
2. the criminal history was of little relevance;
3. his Honour referred to the history between the daughter of Mr MacDonald’s partner and the two men who originally stole the copper, and said he was prepared “to proceed on the basis that you were acting, if not entirely out of a sense of commercial gain, then acting, at least in part, with a view to, if you like, reap some sort of revenge on the original perpetrators”;
4. the stealing was an opportunistic offence, but the subsequent selling was not, involving fraudulently saying that he was lawfully in possession of the copper; the sale “was motivated at least to a certain extent by your financial circumstances at the time”, but for personal gain; the selling involved a degree of deliberate deception and a number of deliberately calculated transactions;
5. the plea was early, and involved prior admissions against interest, although the account downplayed the level of offending;
6. Mr MacDonald’s history and work record, including that the downturn in the mining industry had meant that subsequent work was periodic and opportunistic; prior to this offence “you had all the indicia of being a fine, upstanding member of the community”; he was a highly regarded member of the community;
7. the apology was genuine, and Mr MacDonald was genuinely remorseful and had insight into what he had one; he was “still a relatively young man, and, accordingly, rehabilitation is a factor that cannot be lost sight of”; but “you are not to be accorded the same degree of leniency extended to the very young, who are less worldly and lack the maturity which ought to be attributed ordinarily to an adult”;
8. Mr MacDonald had genuine prospects of not ever re-appearing before the Court, and the offer of restitution was a material factor to take into account.

24. The learned sentencing judge considered “that an actual period of custody is required”.  His Honour said that the head sentence of 15 months was a lenient one, and that the mitigating factors and in particular, the fact that Mr MacDonald was “a genuine prospect of not re-offending” warranted a reduction of the time to serve before suspension from about five months to three months.^[14]
25. Skorka and Clemments were distinguished partly on the basis that s 9(2) of the Penalties and Sentences Act 1992 (Qld), which was significant to the outcome in each case, “is no longer a part of the law of Queensland” and “prison is no longer a sentence of last resort”,^[15] and “Section 9(2) as it then was is no longer a part of the Penalties and Sentences regime”.^[16]

Events subsequent to appeal bail

26. An affidavit, filed by leave on the hearing of this application,^[17] deposed to the following matters concerning Mr MacDonald:

1. his proposed work training, with the firm “Permanent Way Solutions”, was due to commence in April 2015 but had been postponed because of the difficulties posed by his bail conditions;
2. at the date of the application he was on Centrelink benefits;
3. he was to start a training course for work with “Permanent way Solutions” on 29 June 2015, but that was postponed until July 2015;
4. he was to undergo initial training, commencing 6 July 2015, which would qualify him as a Railway Industry Worker card; then he would undergo various tests and training, including mentored work, with a view to his employment as a Track Protection Officer;
5. his training costs would be paid for by Permanent Way Solutions;
6. until he qualified as a Track Protection Officer he would be offered work as part of a Track Maintenance Team.

Error of law in sentencing to actual custody?

27. The main submission made on behalf of Mr MacDonald was that there was error in imposing a period of actual custody, rather than a wholly suspended sentence.  Reliance was particularly placed on:^[18]

1. the opportunistic nature of the theft, and fact that it was similar to stealing by finding;

2. the lack of any relevant criminal history, and good antecedents;
3. the value of the copper was not at a level that dictated that actual custody was required;
4. he was not an employee of the owner, nor did he breach a position of trust;
5. he had apologised and was willing to make restitution; the restitution filled a punitive and restorative aspect of the sentence;
6. Mr MacDonald was his partner’s carer;
7. Mr MacDonald had a job lined up, which was relevant to his rehabilitation, and in the community’s interests; and
8. the statutory prohibition on the sentencing court having regard to “any principle that a sentence of imprisonment should be imposed only as a last resort”, in section 9(12) of the Penalties and Sentences Act, cannot be breached if a wholly suspended sentence was imposed because such a sentence is “a sentence of imprisonment” within that provision.

28. As will be apparent, much of what was said by Henry J, on the application for appeal bail, was adopted in this Court.
29. It was contended that the learned sentencing judge had placed too great a reliance on the repeal of s 9(2) of the Penalties and Sentences Act as a ground for distinguishing cases where the period of imprisonment was suspended.
30. Section 9(2) provided:

“(2)In sentencing an offender, a court must have regard to–

(a)principles that –

1. a sentence of imprisonment should only be imposed as a last resort; and
2. a sentence that allows the offender to stay in the community is preferable.”

31. That section was repealed by the Youth Justice and Other Legislation Amendment Act 2014, which commenced on 28 March 2014.  That Act inserted a new s 9(12) into the Penalties and Sentences Act, which provided:

“(12)This section overrides any other Act or law to the extent that, in sentencing an offender for any offence, the court must not have regard to any principle that a sentence of imprisonment should be imposed only as a last resort.”

32. Plainly the 2014 amendment removed the pre-2014 requirement that a court must have regard to the principles that (i) a sentence of imprisonment should only be imposed as a last resort, and (ii) a sentence that allows the offender to stay in the community is preferable.  The removal of those words would simply mean that it was not obligatory to have regard to those principles,^[19] not that a court could not have regard to them if it was appropriate to do so.
33. However, to some extent the introduction of s 9(12) changed the Court’s consideration.  It provided that a court must not have regard to “any principle that a sentence of imprisonment should be imposed only as a last resort”.  The ordinary meaning of those words would exclude such a principle, whether at common law or statutory.  Be that as it may, the prohibition does not extend to the principle that a sentence that allows the offender to stay in the community is preferable.  Had it been intended to exclude that consideration it would have been easy to say so in the legislation, and that did not occur.
34. The Explanatory Notes to the Youth Justice and Other Legislation Amendment Bill 2014 do not compel a contrary conclusion.  They referred to the desired outcome, namely that courts would have “greater scope to impose sentences which properly reflect the severity of the offending for which the sentences are being imposed”.^[20]  Another way of putting it in the Explanatory Notes was that courts would be permitted “to properly consider detention as a realistically available sentence and to impose detention even though a less restrictive sentence may also have been appropriate in the circumstances”.
35. Finally the Explanatory Notes express the view that the amendment “will likely result in greater rates of actual imprisonment, as the starting point will no longer be that a sentence that allows the offender to remain in the community is to be preferred ...”.^[21]  That expresses a view which does not reflect the actual words of s 9(12).
36. The Explanatory Notes may provide part of the context in which the words of s 9(12) fall to be construed, but do not alter the plain meaning of the words themselves.  All that is mandated is that the Court must not have regard to a principle that “a sentence of imprisonment should be imposed only as a last resort”.
37. Further, it is noteworthy that the amendments did not purport to provide that a court may not consider the principle that was set out in s 9(2)(a)(ii), namely that a sentence that allows the offender to stay in the community is preferable.
38. In other words, the repeal of s 9(2) and the introduction of s 9(12) do not have the effect that the Court must impose a sentence that does not match the severity of the offence, whether that means actual imprisonment or not.
39. A similar conclusion was reached by this Court in R v Verburgt.^[22]  In that case the question concerned the amendments introduced by the Criminal Code and other Acts Amendment Act 2008, which inserted s 9(6A), providing that s 9(2)(a) would not apply to the sentencing of an offender for child exploitation offences.  Holmes JA said:^[23]

“It is certainly the case that a constraint upon the imposition of a sentence involving actual imprisonment has been removed with the introduction of s 9(6A).  It does not, however, follow that any person convicted of an offence under s 228D must be sentenced to actual imprisonment.

Counsel for the respondent’s submission that imprisonment should now be regarded as inevitable for offending of the proportions here must be rejected.  And while the authorities which I have cited may have diminished relevance so far as the question of actual time to be served is concerned, the legislative change does not necessarily have any bearing on the head sentences regarded as appropriate in those cases.”

40. The same conclusion was reached in R v Lovi,^[24] where Muir JA said:

“The inapplicability of the directive in s 9(2)(a) of the Penalties and Sentences Act that a sentence of imprisonment should be imposed as a last resort does not require the conclusion that persons convicted of offences under s 228D must be sentenced to a period of actual imprisonment.  As Holmes JA pointed out in Verburgt, s 9(6B) of the Penalties and Sentences Act prescribes deterrence and antecedents as both of primary importance.  The sub-section also identifies prospects of rehabilitation and remorse as matters of primary importance.”

41. Section 9(2) as it stood before s 9(2)(a) was repealed in 2014 provided the matters to which a court “must have regard” when sentencing, in the same terms as they existed when Mr MacDonald was being sentenced.  Thus nothing changed in the requirement for the Court to have regard to matters such as the nature and seriousness of the offence, the offender’s character and age, the presence of any mitigating factor, and assistance given to authorities.
42. The learned sentencing judge considered “that an actual period of custody is required”.^[25]  His Honour distinguished cases where a suspended sentence was imposed on the basis that s 9(2): “is no longer a part of the law of Queensland”, “is no longer a part of the Penalties and Sentences regime” and “prison is no longer a sentence of last resort”.^[26]
43. In doing so, the learned sentencing judge did not go on to consider what the impact of the repeal of s 9(2)(a) actually was, and whether s 9(12) had any impact on the sort of sentence that was appropriate to the severity of the offence in this case.
44. Further, the learned sentencing judge’s use of the phrase “prison is no longer a sentence of last resort” suggests that his Honour was taking the view that the change meant that actual custody was no longer a sentence of last resort.  For the reasons which follow that was an error.
45. Section 144 of the Penalties and Sentences Act provides:

“(1)If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.

(2)An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.

(3)An order under subsection (1) may suspend the whole or a part of the term of imprisonment.

(4)A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.”

46. Under s 144, what can be suspended is a “term of imprisonment”.  Section 4 of the Penalties and Sentences Act defines the phrase “term of imprisonment” to mean “the duration of imprisonment imposed for a single offence”.  It also defines a “sentence” as “any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded”.
47. It was contended that suspension does not mean that the sentence ceases to be a “sentence of imprisonment”, and the effect of s 144 was that a suspended sentence was within the contemplation of s 9(12) when it refers to the principle that a “sentence of imprisonment should be imposed only as a last resort”.
48. In my view that contention should be accepted.  The principle referred to in the repealed s 9(2)(a) did not refer to actual custody, but rather a “sentence of imprisonment”.  Section 9(12) was enacted to reverse the requirement that courts must have regard to that principle, by providing that courts must not have regard to it.  In that way s 9(12) did not purport to change the principle itself, which remained one concerned with the imposition of a “sentence of imprisonment”.  As can be seen from the definitions of “sentence” and “term of imprisonment”, a “sentence of imprisonment” includes one that has been suspended.
49. In my view the finding that “that an actual period of custody is required” was based on two errors.  First, the limited analysis reflected in the conclusion that s 9(2) “is no longer a part of the Penalties and Sentences regime” and “prison is no longer a sentence of last resort”.  Secondly, the conclusion that the principle was applicable to actual custody rather than a sentence of imprisonment, even if suspended.
50. Those errors mean that this Court must exercise the sentencing discretion afresh.

Appropriate sentence

51. On this application the challenge was not as to the imposition of 15 months as the head sentence but rather as to whether it should have been wholly suspended.  Of course, as events transpired, Mr MacDonald served 10 days in custody, because he was sentenced on 30 March and was granted bail on 9 April.
52. The nature of the offending, Mr MacDonald’s antecedents, and aggravating and mitigating factors have been set out above in paragraphs [10] to [21].
53. The important features concerning Mr MacDonald are that:

1. the stealing was akin to stealing by finding; there was no premeditation or sophisticated planning, and no breach of trust as might be the case with an employee;
2. he made immediate admissions when detected, and his early plea demonstrated cooperation with the administration of justice;
3. he is genuinely remorseful;
4. he has no relevant criminal record;
5. prior to the offence he was an upright citizen, with a good work history as a long term valued employee;
6. he has undertaken to make full restitution, and secured employment; if a period of actual custody is imposed that may jeopardise the employment, and will certainly prevent timely restitution;
7. his prospects of rehabilitation are excellent, and there is no real prospect of reoffending.

54. In my view, neither the requirement for deterrence and denunciation, nor the interests of the community, would be served by imposing a period of actual custody.  This was a clear case for a suspended sentence.
55. Various comparable cases were advanced, including Bingham, Clemments, and Skorka.  I do not consider that they are of much assistance for this case.
56. Bingham involved a sentence of 18 months, suspended after nine months, imposed for fraud and attempted fraud charges.  The offender was 40 at the time of the offences.  He had a considerable criminal history going back to when he was 19, including breaking and entering and drug offences.  He was a heroin addict who used a credit card, sent to him by mistake, to make 20 withdrawals of $500 each.  The funds were mainly used to service his addiction.  His partner had health problems.  There was no prospect of restitution.  The Court held that the head sentence of 18 months was within range but varied the suspension to six months because of the mitigating factors.
57. I do not consider that Bingham assists, as the circumstances are well removed from this case.
58. Clemments involved a sentence of nine months’ imprisonment, wholly suspended, on a plea of guilty to one count of fraud.  The offender was 49 at the time of the offences.  She had fraudulently withdrawn $4,200 from the accounts of an elderly woman who had been hospitalised, and for whom she was running errands.  She lied about the offences when questioned, but then admitted the offence.  Within five months, and starting before she had been charged, the full amount had been repaid.  The plea was early, and she had a good history of employment and community and welfare work.
59. The contention was that there should have been no order for imprisonment, but probation instead.  The Court referred to the fact that she abused the trust reposed in her, it was not done on the spur of the moment, and she lied about it.  The Court did not interfere with the orders.
60. Clemments assists only in the sense that it is a case of a mature offender who was given a wholly suspended sentence where full restitution was made.  However, that usefulness is limited in that the Court merely held that the sentence imposed was not manifestly excessive.
61. Skorka involved a sentence of nine months’ imprisonment, wholly suspended, imposed on two brothers, on a plea of guilty to stealing from the Brisbane City Council.  Each was ordered to pay restitution.  They was 29 and 21 at the time of the offences.  The money was stolen from parking meters using keys made by the brothers.  One brother admitted to stealing over a one year period, the other over seven or eight months.  One brother gained $18,000 and the other $12,000.  Both were from solid backgrounds and had good prospects of rehabilitation.  Each brother had some criminal record.
62. The sentence was imposed by the District Court on appeal from a magistrate who had imposed 240 hours of community service.  The Court referred to the fact that the offences involved the theft of a substantial amount over a significant period of time.  The stealing was brazen and calculated, and at the cost of ratepayers, and neither brother was a callow or naïve youth.  However there were compelling mitigating factors, including the prospects of rehabilitation, the plea, cooperation and an offer of compensation.  The Court declined to interfere.
63. Skorka is another example where a stealing charge has resulted in a wholly suspended sentence, but that is the extent of the assistance it gives, as the facts are well removed from Mr MacDonald’s case, and the conclusion of the Court was only that the sentence was not manifestly excessive.

Conclusion

64. For the reasons set out above the sentence on each count should have been wholly suspended.  On that basis I joined in the orders made on 26 June 2015.
65. PHILIPPIDES JA:  The reasons given by Morrison JA and the additional reasons stated by McMurdo P form the basis of my joining in the orders made on 26 June 2015.
66. In particular, the sentencing judge erred in his approach to the effect of the amendments to s 9 of the Penalties and Sentences Act 1992 (Qld), that is, the repeal of s 9(2) of the Act (which stated that a sentence of imprisonment should be imposed as a last resort) and the introduction of s 9(12) of the Act (stating that a sentencing judge must not have regard to any principle that a “sentence of imprisonment” should be imposed only as a last resort).
67. The scheme of the PSA makes it clear that the expression “sentence of imprisonment” for the purposes of s 9(12) is to be understood consistently with s 144 of the PSA, that is, as including a term of imprisonment that is suspended.  So much is made apparent by the fact that the expression “actual imprisonment”, which is defined in s 9(13), only appears in s 9(4).  It is not adopted in s 9(12).  It follows that where a term of imprisonment is considered appropriate, the amendments to the Act do not have the result that a suspended sentence may not be imposed.